Digital Commons Network^™

European Economic And Monetary Union: Will The Emu Ever Fly The Euro: A New Single Currency For Europe: Legal Framework, Roger J. Goebel

Faculty Scholarship

The title of this article represents a pun, but a pun with a point that responds to the tensions between these dreams of EMU's success and fears of its failure. The emu is a large Australian bird, but, like the better-known ostrich, the emu does not fly. However, it can run very fast. The point is, that during the early stages of planning for the EMU there were some very high-flying aspirations for what it might attain, and what its attainment might mean for the political future of the European Union. Since then, these aspirations have been considerably chilled by …

Global Labor Rights And The Alien Tort Claims Act, Sarah H. Cleveland

Faculty Scholarship

Are labor rights human rights? Are some worker rights so fundamental that must be respected by all nations, and all corporations, under all circumstances? If so, who has the authority to define such rights, and how should they be enforced? What is the effect on the global economy of enforcing international worker rights? These are some of the questions confronted by the authors of Human Rights, Labor Rights, and International Trade, a compilation of essays by an international group of scholars, labor rights activists, and corporate executives addressing contemporary topics in the dialectic among labor, trade, and human rights.

Free Speech And Good Character, Vincent A. Blasi

Faculty Scholarship

Early proponents of the freedom of speech such as John Milton, John Stuart Mill, and Louis Brandeis emphasized the role expressive liberty plays in strengthening the character of persons entrusted with such freedom. These theorists argued that character traits such as civic courage, independence of mind, and the capacity to learn from experience and adapt are nurtured by trusting citizens with dangerous ideas. Today there is much talk about good character in relation to free speech disputes-but all on the side of those who would regulate speakers. It is time to remember that a concern about character cuts both ways …

Lawyering In The State Of Nature: Instinct And Automaticity In Legal Problem Solving , Ian Weinstein

Faculty Scholarship

This article explains why lawyers do not think or talk like other people, how they got this way, and why this is both a good thing and a bad thing. I have watched hundreds of law students leave their old ways of thinking and talking behind and begin to sound like lawyers. One marker of the progress from lay person to lawyer is the emergence of the ability to tell a coherent fact and law story about a new legal problem. I have sometimes celebrated this professional progress and sometimes lamented the loss of common sense, but my lawyerly analysis …

Foreword Symposium: Fourth Annual Mid-Atlantic People Ofcolor Legal Scholarship Conference: Law And Literature: Examining The Limited Legal Imagination In The Traditional Legal Canon, Sheila R. Foster

Faculty Scholarship

The Fourth Annual Mid-Atlantic People of Color Legal Scholarship Conference, which took place at Rutgers Law School in Camden on February 12-14, 1998, poignantly captured the theme around which the conference was organized. The theme of the conference was "Law and Literature: Examining the Limited Legal Imagination in the Traditional Legal Canon." True to the theme of the conference, many presenters sought to expand our collective imagination through poetry, fiction, and narrative. The presentations were intellectually stimulating and provocative. Indeed, there was a literary quality to some of the presentations. Perhaps most importantly, the conference itself, in the tradition of …

Compensation And The Interconnectedness Of Property, Thomas W. Merrill

Faculty Scholarship

Professor Joseph Sax's scholarship on the Takings Clause combines the craft of a first-class lawyer with the passion of a visionary. The good lawyer that he is, Sax's scholarship reflects a deep understanding of Supreme Court case law, legal history, and the practical dimensions of various kinds of land use disputes. Yet his work on takings is not animated by any desire for mere doctrinal tidiness. It is driven by a distinctive vision – one in which the earth's resources are becoming increasingly interconnected and in which there is an increasing need for the government to resolve conflicts regarding the …

Does The Constitution Require That We Kill The Competitive Goose? Pricing Local Phone Services To Rivals, William J. Baumol, Thomas W. Merrill

Faculty Scholarship

This Article concludes a series by these authors and Professors J. Gregory Sidak and Daniel F. Spulber, published last year in this journal. Here, Professors Baumol and Merrill address the issues surrounding the pricing of local phone services to long distance rivals, clarifying their points of agreement and disagreement with Sidak and Spulber. In their previous articles, Sidak and Spulber argued that the movement toward competition in local telephone service should be accompanied by substantial compensation to existing local telephone carriers, a view that Baumol and Merrill do not share. Rather, they note three points of disagreement between Sidak and …

The Internal Relations Of Government: Cautionary Tales From Inside The Black Box, Peter L. Strauss

Faculty Scholarship

Both the structure of the Constitution and elementary civics texts imagine an Executive Branch under the close, unitary control of an elected chief executive, the President. Doubtless from the start, and unmistakably in the administrative state, the reality has been quite different. Those to whom Congress has delegated authority to act, particularly in that domain that we have in mind when invoking a "government of laws," conduct their business within a web more aptly described as coordination than control. In regulatory matters, the coordinating impulses run through the Department of Justice ("DOJ") and, increasingly, the Office of Information and Regulatory …

The Contradictions Of Mainstream Constitutional Theory, Kimberlé W. Crenshaw, Gary Peller

Faculty Scholarship

For the last four decades, some form of "process" theory has dominated conventional constitutional theory, on the bench and in the academy. The organizing, usually implicit, background assumption is that the exercise of governmental power – whether by legislatures or courts – is to be tested for normative legitimacy against a set of procedures. Writing as critics of the basic framework of process theory, Professors Kimberli Crenshaw and Gary Peller discuss the contributions and constraints of a proceduralist constitutional law discourse. In light of direct democracy initiatives claiming the power of legislation, and a substantively conservative judiciary defining the "law," …

Electronic Rights In Belgium And France: General Association Of Professional Journalists Of Belgium V. Central Station (Brussels Court Of First Instance, October 16, 1996; Brussels Court Of Appeals, October 28, 1997); Union Of French Journalists V. Sdv Plurimedia (Strasbourg Court Of Grand Instance, February 3, 1998) Symposium On Electronic Rights In International Perspective, Jane C. Ginsburg

Faculty Scholarship

Like many national presses in Europe, the Belgian press divides ideologically. Each daily newspaper represents the views of a political party, or expresses the perspective of a political or religious belief. Newspaper readers therefore tend to select the newspaper that most closely corresponds to their world-view. Ten publishers of Belgian dailies and weeklies formed a consortium, Central Station, to operate a website that would offer a crossection of all the participating periodicals' articles on a variety of subjects. The articles would appear in print in their separate newspapers in the morning, but would be available that evening on the Central …

The Courts And The Congress: Should Judges Disdain Political History?, Peter L. Strauss

Faculty Scholarship

In an earlier article in these pages, Professor John Manning argued that the use of legislative materials by courts in effect permits Congress to engage in delegation of its authority to subunits of the legislature, in violation of the separation of powers. Professor Strauss, acknowledging that the previous generation of courts may have excessively credited the minutiae of legislative history, responds that judicial attention to the political history of legislation is required, not forbidden, by considerations of constitutional structure. Only awareness of that history will promote interpretation reflective of the context and political moment of Congress's action. Our history of …

Reflecting On The Subject: A Critique Of The Social Influence Conception Of Deterrence, The Broken Windows Theory, And Order-Maintenance Policing New York Style, Bernard Harcourt

Faculty Scholarship

In 1993, New York City began implementing the quality-of-life initiative, an order-maintenance policing strategy targeting minor misdemeanor offenses like turnstile jumping, aggressive panhandling, and public drinking. The policing initiative is premised on the broken windows theory of deterrence, namely the hypothesis that minor physical and social disorder, if left unattended in a neighborhood, causes serious crime. New York City's new policing strategy has met with overwhelming support in the press and among public officials, policymakers, sociologists, criminologists and political scientists. The media describe the "famous" Broken Windows essay as "the bible of policing" and "the blueprint for community policing." Order-maintenance …

Why Ownership Matters? Entrepreneurship And The Restructuring Of Enterprises In Central Europe, Roman Frydman, Marek P. Hessel, Andrzej Rapaczynski

Faculty Scholarship

This paper, based on a study of mid-sized firms in the Czech Republic, Hungary, and Poland, seeks to explain the reasons behind the marked impact of ownership on firm performance which has been observed in a number of studies in Eastern Europe and other parts of the world. Focusing in particular on the differential impact of ownership on revenue and cost performance, the paper argues that privatized firms controlled by outside investors are more entrepreneurial than those controlled by corporate insiders or the state. The paper provides evidence that all state and privatized firms in transition economies engage in similar …

Price Discrimination, Personal Use And Piracy: Copyright Protection Of Digital Works, Michael J. Meurer

Faculty Scholarship

The growth of digital information transmission worries copyright holders who fear the new technology threatens their profits because of greater piracy and widespread sharing of digital works. They have responded with proposals for expanded protection of digital works. Specifically, they seek restrictions on personal use rights regarding digital works provided by the fair use and first sale doctrines. The proposed changes in the allocation of property rights to digital information significantly affect the ability of copyright holders to practice price discrimination. Broader user rights make discrimination more difficult; broader producer rights make discrimination easier. I argue that more price discrimination …

Treating Sexual Harassment With Respect, Anita Bernstein

Faculty Scholarship

No abstract provided.

Formed By Thalidomide: Mass Torts As A False Cure For Toxic Exposure, Anita Bernstein

Faculty Scholarship

No abstract provided.

Does Adr Really Have A Place On The Lawyer's Philosophical Map?, Barbara Mcadoo, Nancy A. Welsh

Faculty Scholarship

For nearly two decades, proponents of alternative dispute resolution (ADR) have touted the advantages of institutionalizing ADR within the courts. The anticipated benefits have included: quicker settlements, better settlements, resolution which is less expensive for the courts and litigants, and greater litigant satisfaction with both the procedure and the outcome. Many state and federal courts have listened. Indeed, in nearly every state, at least one local state and/or federal court has incorporated ADR in some manner. In Minnesota, with the promulgation of Rule 114 of the Minnesota General Rules of Practice, the Minnesota Supreme Court has chosen to institutionalize ADR …

Note, Moving Ground, Breaking Traditions: Tasha’S Chronicle, Angela Onwuachi-Willig

Faculty Scholarship

This Note uses a fictional dialogue to analyze and engage issues concerning stereotypes, stigmas, and affirmative action. It also highlights the importance of role models for students of color and the disparate hiring practices of law firms and legal employers through the conversations and thoughts of its main character, Tasha Crenshaw.

Cancer Genetic Susceptibility Testing: Ethical And Policy Implications For Future Research And Clinical Practice, Benjamin S. Wilfond, Karen H. Rothenberg, Elizabeth J. Thomson, Caryn Lerman

Faculty Scholarship

No abstract provided.

Grappling The Monster Case: The Next Frontier In Adr, Nancy A. Welsh, Ann Montgomery

Faculty Scholarship

Not so long ago, "ADR" was just one more term in a legal jargon already filled with too many acronyms. While we concede that "ADR" might not rival "CPR" as a vital necessity, its use is extremely important to the practice of law today. Since the promulgation of Rule 114 of the Minnesota General Rules of Practice, nearly 80 percent of Minnesota attorneys report that they are using ADR to help resolve their civil cases filed in state trial courts.' Their reasons? ADR processes can cut litigation costs, reduce clients' expenses, save attorneys' and clients' time, and generate earlier settlements. …

A Report On The Attitudes Of Foreign Companies Regarding A U.S. Listing, James A. Fanto, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Legal Regime For Protecting Cultural Property During Armed Conflict, Joshua E. Kastenberg

Faculty Scholarship

This article examines the depth of customary international law – that is the accepted practices and norms of the international community – with respect to cultural property, the 1954 Hague Convention and Additional Protocol One, and Department of Defense and Air Force policy. Section I will discuss the evolution toward a customary development of an international law of war to protect cultural properties. This section also notes the basic principles of the law of armed conflict. Section II examines the terms of the 1954 Hague Convention, and Additional Protocol One to the Geneva Convention. Section II also applies the various …

Honesty, Privacy And Shame: When Gay People Talk About Other Gay People To Nongay People, Steven K. Homer, David L. Chambers

Faculty Scholarship

There is a longstanding convention among lesbians and gay men in the United States: Do not reveal the sexuality of a gay person to a heterosexual person; unless you are certain that the gay person does not regard his sexuality as a secret. This article looks that this convention as it applies in the context of conversations between individuals about acquaintances, friends, and the person next door. We focus on the outing of ordinary people by other ordinary people because the day-to-day lies openly gay people tell to protect friends and acquaintances often place the tellers in a personal ethical …

On Reading Recipes. . . And Constitutions, Gary S. Lawson

Faculty Scholarship

Modem theories of constitutional interpretation typically make the truth of propositions about constitutional meaning depend, at least to some degree, on the extent to which those propositions lead to politically legitimate results' and/or cohere with modem constitutional practice. That is, such theories generally maintain that correct interpretations of the Constitution must provide normative grounds to apply those interpretations in real cases, must be consistent with at least a substantial amount of real-world constitutional decision making, or both.

The Laws Of Genetics, Michael S. Baram

Faculty Scholarship

It used to be that high technology meant nuclear physics and missile systems, and presented the threat of physical destruction. Today, "high tech" means biotechnology and electronic communication systems, and the focus has shifted to concerns about more subtle problems like loss of privacy, inability to control personal information, and the discriminations and other adversities that often follow.

The Chosen People In Our Wilderness, Susan P. Koniak

Faculty Scholarship

Strangers there are among us, practicing with weapons for something they believe might come - something some of them believe should come. Militia men, patriots, self-proclaimed true Americans. Chosen people. What are we, members of the power elite, the academy, the legal intelligentsia - the other chosen people - to make of them? Sideshow freaks may titillate even a scholar, but they rarely, if ever, inform. Is there more here?

Along with the authors of Gathering Storm and Rural Radicals, I believe there is. Neither of these books sets out to convince lawyers or law professors in particular that …

From Product To Process: Evolution Of A Legal Writing Program, Diane Edelman, Jo Ann Durako, Kathryn Stanchi, Brett Armdur, Lorray Brown, Rebecca Connelly

Faculty Scholarship

No abstract provided.

Enterprise Liability And The Emerging Managed Health Care System, William M. Sage

Faculty Scholarship

“Enterprise medical liability” is a term used to describe a system in which health care organizations bear responsibility for medical malpractice in addition to or instead of individual health professionals. Enterprise liability is in many senses a natural outgrowth of the increasing dependence of medical practice on institutional resources and expertise. Proposals for enterprise liability surfaced briefly from the academic literature into the political spotlight during the 1993-94 health care reform debate. At that time, objections to the concept as a basis for medical malpractice liability, even in a restructured health care system, were nearly universal.

Just five years later, …

Submersible And Scuba Collections In The Coastal Waters Of The Bahama Islands And Florida's Oculina Coral Banks: Biomedical And Biodiversity Research Of The Benthic Communities With Emphasis On Porifera And Gorgonacea., Shirley A. Pomponi, John K. Reed, Amy E. Wright, Kathleen E. Janda, Robin Willoughby, Susan H. Sennett, M. Kelly-Borges, James O. Mcinerney, Christi L. Adams, Klaus, Kelly-Borges, David Myles

Faculty Scholarship

Division of Biomedical Marine Research (DBMR) scientists [Dr. Shirley Pomponi (Principal Investigator; Director, Division of Biomedical Marine Research), John Reed (Chief Scientist; Dive Safety Off icer), Dr. Amy Wright, Robin Willoughby, Kathleen Janda, and Dr. Susan Sennett] and visiting scientists [Dr. Michelle Kelly-Borges, Dr. James McInerney, Dr. David Myles, Christi Adams, and Klaus Kelly-Borges] conducted a 7 day research expedition to the Bahama Islands on the R/V EDWIN LINK from October 25 to 31, 1996. One submersible dive was also conducted on the deep-water Oculina coral banks of central eastern Florida. The primary objectives were: 1) to conduct biochemical and …

The Religion Clauses And Freedom Of Speech In Australia And The United States: Incidental Restrictions And Generally Applicable Laws, David S. Bogen

Faculty Scholarship

No abstract provided.